Review Transfer 2008-0245 (Law No. 19, 2009)

amount of claims secured by the relevant property as of the evaluation base date;

Article 63 (1) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act refers to the amount of claims secured by the relevant property as of the evaluation base date, not to the maximum amount of claims secured by the right to collateral security, but to the amount of claims secured by the relevant

The contents of the decision shall be the same as attached.

Article 97 (Calculation of Necessary Expenses for Transfer Income Tax)

Article 60 (Principles, etc. of Appraisal)

1. The plaintiff's claim is dismissed.

2. The costs of lawsuit shall be borne by the Plaintiff.

The Defendant’s imposition of capital gains tax of KRW 76,303,220 against the Plaintiff on August 4, 2008 shall be revoked.

1. Circumstances of dispositions of the instant case;

The following facts are not different between the parties, or acknowledged by Gap evidence 1 through 19, Gap evidence 2, Eul evidence 1, 2, Eul 1, 3, 4 and the whole purport of arguments.

가. 원고는 2004. 3. 1. 남편인 이★★로부터 OO시 OO읍 ☆☆리 1361-1 토지 외 28필지(이하 '이 사건 부동산'이라 한다)를 상속받은 후, 2007. 11. 2. OOOO개발공사에 3,345,249,790원에 양도(이하 '이 사건 양도'라 한다)하였다.

나. 위 상속 당시 이 사건 부동산 중 OO시 OO읍 ☆☆리 1361-1 토지 외 22필지 등에는 근저당권자 OO농업협동조합, 채무자 이★★, 채권최고액 8억 원으로 한 공동 근저당권이 설정되어 있었는데, 그 근저당권의 설제 잔존 채권액은 5억 6,000만 원이었다.

C. On January 31, 2008, the Plaintiff filed a preliminary return on the transfer income tax for the year 2007 following the transfer of this case with the Defendant. B. The Plaintiff calculated the acquisition value of the instant real estate by allocating and applying the amount of KRW 800 million, which is the maximum debt amount of the right to collateral security, according to the ratio of the officially assessed individual land price

D. However, on August 4, 2008, the defendant calculated the acquisition value of the real estate of this case by distributing and applying the remaining amount of claims of the right to collateral security, 56,000,000 won, to the plaintiff on the ground that the value of the property subject to collateral security under Article 66 of the Inheritance Tax and Gift Tax Act (amended by Act No. 8828, Dec. 31, 2008; hereinafter the same shall apply), Article 63 (1) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act (amended by Presidential Decree No. 20621, Feb. 22, 2008; hereinafter the same shall apply) refers to the amount of claims secured by collateral security as of the base date of appraisal, not the maximum debt amount, but the amount remaining as of the base date of appraisal secured by the collateral security.

E. On October 28, 2008, the Plaintiff filed a request for review with the Commissioner of the National Tax Service, but was dismissed on January 18, 2009.

2. Whether the instant disposition is lawful

A. The plaintiff's assertion

For the following reasons, Article 63(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the amount of a claim secured by the relevant property as of the base date for appraisal means the maximum amount of debt secured by the right to collateral security established on the relevant real estate, but the instant disposition otherwise

(1) The provision is a supplementary provision to calculate the price near the market price of the real estate. Since the maximum debt amount of the right to collateral security is a price close to the market price of the real estate over the secured debt amount remaining as of the base date of appraisal, the claim amount under the provision shall be deemed to mean the maximum debt amount

(2) On the contrary, the interpretation of the above provision as to the Defendant would result in an unreasonable outcome, where the amount of secured claims remaining as of the base date of appraisal exceeds zero (0) won, i.e., the value of the real estate would be zero (0) won.

(b) Related statutes;

It is as shown in the attached Form.

C. Determination

(1) (A) In calculating gains on transfer of inherited assets, Article 97(1)1 of the Income Tax Act and Article 163(9) of the Enforcement Decree of the same Act provide that, in calculating gains on transfer of inherited assets, the value assessed under the provisions of Articles 60 through 66 of the Inheritance Tax and Gift Tax Act as of the date of commencing the inheritance shall be deducted from the transfer

(B) Article 60 of the Inheritance Tax and Gift Tax Act provides that the value of the property shall be calculated based on the market price as of the date on which the inheritance commences, and in cases where it is difficult to calculate the market price, the value of the property shall be calculated based on the method under Articles 61 through 1165 considering the type, size, transaction status, etc. of the relevant property. Article 61 of the Inheritance Tax and Gift Tax Act provides that in cases of land, the market price cannot be calculated based on the publicly assessed individual land price under the Public Notice of Values and Appraisal of Real Estate Act, and Article 66 subparagraph 1 of the Inheritance Tax and Gift Tax Act provides that in cases of land on which the mortgage is established, the larger amount shall be calculated based on the value assessed under Article 60 of the Inheritance Tax

(C) Article 63(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that "the value appraised by the Presidential Decree on the basis of the amount of the claim secured by the land in question" shall be "the amount of the claim secured by the right to collateral security as of the base date for appraisal" in the case of the property whose collateral security is created.

(2) In full view of the circumstances revealed through the contents, structure, purport, and amendment process of the above Paragraph (1) above, the amount of claims secured by the pertinent property as of the evaluation base date under Article 63(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act is not the maximum amount of claims secured by the right to collateral security, but the amount of claims remaining as of the evaluation base date secured by the relevant property.

(A) Article 63 (1) 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act does not stipulate that "the amount of the claim secured by the pertinent property as of the evaluation base date" or "the maximum amount of the secured claim" or "the amount of the secured claim".

(B) In assessing the property created by the right to collateral security under Article 63(2)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act, if the maximum debt amount of the right to collateral security established on the pertinent property is less than the maximum debt amount, then the said property shall be deemed as the maximum debt amount. Article 63(1)3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that “The amount of the claim secured by the relevant property as of the evaluation base date shall not be the maximum debt

(C) The Enforcement Decree of the Inheritance Tax and Gift Tax Act provides that with respect to the valuation value of the property on which the right to collateral security (if the market value is unknown, the value assessed by the supplementary assessment method) is to be selected as the larger of the current market value, compared with the valuation value of the property on which the right to collateral security has been established, until December 31, 1990 (Article 5-2 subparag. 3 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act before amended by Presidential Decree No. 13196 of Dec. 31, 190), the said provision provides that "if there is a value appraised by an appraisal business operator under an Act other than the publicly announced land and land for the purpose of establishing the right to collateral security, the said value shall be determined as the value of the property appraised by the appraisal business operator under an Act other than the publicly announced land and land, etc., from January 1, 1991 to December 31, 198 (Article 63 of the Enforcement Decree of the Inheritance Tax and Gift Tax Act before amendment by Presidential Decree No. 15971 of Dec. 319.).

(D) Examining the developments leading up to and the legislative intent of the amendment of the Enforcement Decree of the Inheritance Tax and Gift Tax Act as mentioned above (C), the first "Maximum amount of claims of the right to collateral security under the Enforcement Decree of the Inheritance Tax and Gift Tax Act" was changed to the "value at the time of establishment of the right to collateral security on the ground that there is a problem that the value of the right to collateral security is higher than the market value when the right to collateral security was set in consideration of the company's credit, and again, the "value at the time of establishment of the right to collateral security" was changed to the "value at the time of creation of the right to collateral security" on the ground that there is a problem that the appraisal value is too excessive from

(E) Recognizing the special case of appraisal of the property on which the mortgage, etc. has been created, Article 66 of the Inheritance Tax and Gift Tax Act provides that the value of the property shall be the larger of the appraised value under the conditions as prescribed by the Presidential Decree based on the market price or the amount of the claim secured by the pertinent property, as prescribed by the Presidential Decree. The purpose of this provision is to protect the principle of market assessment by preventing inconsistency between the amount of the debt exceeding the individual property value if the total amount is recognized by the supplementary evaluation method, such as the publicly assessed individual land price, and the amount of the debt secured by the pertinent property, from deducting the amount of the corresponding property from other property value. However, Article 63(1)3 of the Enforcement Decree of the current Inheritance Tax and Gift Tax Act specifically provides that the corresponding property shall remain in marb as of the evaluation base date secured by the pertinent property

(f) On the grounds stated in the above (e), even if the remaining amount of credit as of the evaluation base date, which the pertinent property is secured is zero won, the market price or the individual land price (a supplementary evaluation method) which is a larger amount, naturally, becomes the value of the pertinent property as of the commencement date of inheritance. Thus, as alleged in the plaintiff in the above (a) (2), the acquisition value of the inherited property cannot occur if the acquisition value of the inherited property becomes zero won

(3) Accordingly, the instant disposition in the same purport is lawful, and the Plaintiff’s assertion disputing this purport is not acceptable.

3. Conclusion

Therefore, the plaintiff's claim is dismissed as it is without merit. It is so decided as per Disposition.